An eviction is a lawsuit filed by a landlord to remove people and belongings from the landlord’s property. In Texas law, these are also called “forcible entry and detainer” or “forcible detainer” suits. There are hundreds filed every day in Texas justice courts (also called justice of the peace or J.P. courts).
A landlord must start this process by giving a notice to vacate and demand for possession to the tenant. You do not have to move out at this point. See the sections below for more information about how to advocate for yourself if you’re being evicted.
A landlord may evict a tenant for violating the terms of the lease (for example, for failing to pay rent) or staying past the agreed lease term (“holding over”). Your landlord cannot discriminate or retaliate against you.
If you are getting evicted, you should try to get advice from an attorney. If you have a very low income, you may qualify for free or low-cost legal aid from a nonprofit legal aid organization in your area. See the Resources page for more information.
If you get an eviction notice, it’s important to take action. You can take some small steps to stop or delay your eviction. Below are some useful tools that will help you understand your rights in the case of an eviction.
If a tenant does not move after a landlord gives the tenant a notice to vacate, the landlord must file an eviction case with the J.P. court to get approval to kick the tenant out. The landlord must prove that the tenant has either violated the lease or has not moved after the landlord lawfully did not renew the lease and that the landlord gave the tenant proper notice in the manner required under the law. Before a tenant can actually be forced from their home a court must rule that the landlord is legally entitled to recover possession, and a constable must supervise the actual removal of the tenant from the unit.
1. RECEIVE A NOTICE TO VACATE
Under Texas law, a landlord is required to give you a written notice to vacate before filing an eviction lawsuit. The notice will demand that you vacate within three days unless your lease provides for a different notice period. You do not have to leave yet. After you get the notice to vacate, consider whether the landlord is following the law:
You can defend yourself in court. If the landlord is wrong or did not follow the law, the justice of the peace should deny the eviction.
See “What should I do at the eviction hearing?” for information about defenses you can use in court.
TALK TO YOUR LANDLORD AND MAKE AN AGREEMENT
You might be able to come to an agreement with your landlord and avoid going to court. Try to talk to your landlord and see if you can get more time to fix the situation. You may want to ask the landlord to not file an eviction lawsuit in return for fixing the lease violation. For example, you may be able to stop the landlord from filing an eviction suit by paying rent that you owe, getting rid of pets not allowed under the lease, or cutting down loud noise.
It is best to put an agreement you reach in writing and have both you and the landlord sign and date it.
2. RECEIVE EVICTION PAPERS FROM THE COURT
If you can’t come to an agreement, your landlord will file an eviction suit in Justice Court. A constable will try (twice) to hand deliver the eviction suit papers to your home. If the constable or sheriff is unable to hand them to you or someone over 16 years of age residing at the premises, they should post the papers in a visible spot on the outside of the rental unit and mail you a copy. Only the constable or the sheriff can legally deliver the eviction suit papers from the court. You still do not have to move out yet.
Tip: If you’re home, you should accept the papers so that you know what is happening. You will have to go to court to defend yourself so you will want to know when and where you have to be at court.
When the landlord files an eviction suit, it becomes a permanent court record and will likely become a part of your tenant history record, making it harder to rent in the future. Once it is filed, it is best to have it dismissed or have a judgment made in your favor.
IMPORTANT: If any of the court papers you received is called something like “Bond for Possession” or “Notice of Filing Possession Bond” you must show up for the trial or file a written answer if you do not intend to show up. See Rule 510.5 of the Texas Rules of Civil Procedure. Otherwise, the justice of the peace may sign a default judgment, and the court must issue a writ of possession immediately. The writ of possession may be executed on or after the 7th day the constable served you with the Possession Bond. You should file a written answer and also appear for the trial. This will ensure that if you lose, you get five days after the hearing to move out or appeal. Because many J.P. courts follow different procedures regarding possession bonds, you should contact an attorney to help you and talk with the court clerks to understand how their court interprets the rule on possession bonds.
DECIDE IF YOU WANT TO FIGHT THE EVICTION SUIT
You will need to decide if you want to fight the eviction suit. Even if you do not have a legal defense (see below), you can often reach an agreement if you go to court that could mean the court or the landlord dismisses your case. This may help preserve your rental history, but the suit is still part of the public records.
If you move before the court date, you should still go to the hearing and tell the justice of the peace you have moved. You also want to make sure that the court does not give the landlord a judgment for more rent than you owe.
If you choose to fight an eviction suit and lose, you are liable for the landlord’s court costs and the landlord’s attorney’s fees, if the landlord hired an attorney. You may be held liable for the landlord’s attorney’s fees only if the lease says the landlord can recover attorneys’ fees or if the landlord gives you an 10-day notice to vacate by certified mail that specifically says you will be responsible for attorneys’ fees if you do not vacate before the 11th day after receiving the notice. See Section 24.006, Property Code.
If you want a jury trial, then you must file a written demand for trial by jury at least three days before the trial date. The demand must be accompanied by payment of the jury fee (currently $22.00) or a Statement of Inability to Afford Payment of Court Costs. Check with the court clerk to verify whether the jury fee amount has increased from $22.00.
3. GO TO THE EVICTION HEARING
The court papers you receive will set the date of the eviction trial, which must be held within 21 days of the date the landlord filed the eviction lawsuit. At the hearing you will need to be prepared to present your side of the story to the Justice of the Peace (judge). Take your copy of the lease, any pictures, letters, documents, receipts, or witnesses to show the judge as evidence.
Note: The judge may not consider letters and affidavits from witnesses. You need to take any witnesses with you if you want the court to hear what they have to say. You can request that the clerk issue a subpoena to force a particular witness to come to the hearing (the subpoena can be served by any person over 18, and not a party to the case). Constables charge fees (usually $60) to serve a subpoena. Check with the constable on the fee if you are asking the constable to deliver the subpoena.
For more on what to do at the hearing and to learn about what kind of legal defenses you might have, see “What should I do at the eviction hearing?” below.
The judge or the jury will make a final decision after hearing the case and sign a judgement. If the landlord wins, the law allows you five calendar days to appeal the decision or move out. If you win, the landlord also has five calendar days to appeal the decision.
4. APPEAL OR MOVE OUT
If you lose at the hearing, you have five calendar days to appeal. See “Appealing an eviction” below for more information.
5. WRIT OF POSSESSION
If you do not appeal, the landlord can ask the court for a writ of possession. The constable will then post a 24-hour notice on your front door stating the date and time the constable will return and remove you and your possessions. If you do not move, the constable or sheriff will execute the writ of possession by standing by to preserve the peace while the landlord removes you and your things.
